Two recent decisions highlight the need to pay close attention to the terms and conditions of shipping documents and, in the case of lost goods, the time period for filing a written claim.
On January 9, 2012, Governor Chris Christie signed into law the New Jersey Trade Secret Act, A-921/S-2456 (.PDF) providing statutory protection against trade secret misappropriation. Previously, New Jersey was one of only four states (including New York, Massachusetts and Texas) in which there was no such statue and the misappropriation of trade secrets was governed by the common law.
As previously reported in this Blog, the Act makes certain significant changes in the law, including
The Act is effective immediately but only governs misappropriations after the effective date.
The Adoption of the Act is likely to have a significant effect on trade secret litigation in New Jersey and may put pressure on the few holdout Strats, including New York, to adopt a similar statute.
On January 5, 2012, the Assembly Judiciary Committee failed to approve a proposal to establish a specialized court New Jersey which would be staffed with specially qualified judges and would handle only business and commercial cases. Similar courts currently exist in many states in the Northeast, such as Massachusetts, Rhode Island, Connecticut, New York, parts of Pennsylvania, Maryland and Delaware.
Assembly Bill No. 265 .(PDF)of 2010 sponsored by Upendra J Chivukula (D) and David Russo (R), would authorize the appointment of from 6 to 12 new judges who would possess a background in business litigation and would be responsible for cases involving business and commercial disputes.
Proponents of the bill argue that specialized business courts would improve the quality and consistency of decisions in business and commercial matters.
New business court judges would be equivalent to Superior Court Judges. They would be subject to the same rules governing appointment, approval, tenure compensation and retirement. However, the bill provides that appointment of Business Court judges should take into account knowledge of the law governing business and commerce and experience in business and commercial matters.
At the hearing, the committee Chairman, Assemblyman Peter J. Barnes III, D-Middlesex, stated that there was “overwhelming support’’ for the legislation. However, New Jersey’s Administrative Office of the Courts strongly opposed the legislation. Legislative liaison, Daniel Phillips, testified that “this is probably one of the most inopportune times to consider a bill like this.” He cited current intense pressure on the judiciary including 55 judicial vacancies, crumbling infrastructure, inadequate computer systems and budget cuts all of which is resulting in backlogs and delays. Phillips also stated that there was no demonstrated need for separate business court and that instituting such courts would be costly.
Sponsors said they would try to have the bill reconsidered again at a future time.
In a development that will may strike fear into the hearts of owners of small businesses and the parents of teen agers, and which has already begun to enter the pantheon of stories that are perceived to illustrate the problems with the American system of litigation, a young man who voluntarily took prescription drugs at a party attended by a group of teenagers and who suffered injuries due to an overdose will receive a $4.1 million settlement, to be split between the young host of the party and his mother, guests at the party and a pharmacy from which the drugs had been stolen.
I could have just posted the above 3 posts on Facebook or any other social media website. They are no different than the average posts made by anyone reading this blog entry. They are innocent enough, available to millions if my page is “public” (and easily searchable on a search engine if “public”), but available to only my friends if my page is “private.” Or are they?
As of December 5, 2011 both houses of the New Jersey Legislature had passed the New Jersey Trade Secrets Act. The legislation now goes to Gov. Christie for signature after which it will become law effective immediately. It will not apply to misappropriation occurring prior to the effective date.
The act makes significant changes in the protections that were available under common law and passage of the Act is likely to herald a new age of trade secret litigation in New Jersey, which until now has been one of a handful of states not to adopt legislation addressing the protection of trade secrets.
On September 29, 2011, the N.J. Appellate Division affirmed a lower court ruling that dismissed plaintiffs' claims against drug manufacturers, including (a) failure to warn under the Products Liability Act (PLA), (b) fraud, (c) misrepresentation, and (d) violations of the Consumer Fraud Act. The appellate court relied upon the PLA as the exclusive remedy for injured plaintiffs, with special deference being given the labeling scheme that is managed by the federal Food and Drug Administration (FDA).
New Jersey has one of the strongest consumer protection laws in the country, the Consumer Fraud Act (“CFA”). First adopted in 1960, the CFA has been used as a sword by many the litigator, entitling the aggrieved party to treble damages, attorneys’ fees, and costs. To obtain this enhanced statutory relief, a plaintiff typically had to show ascertainable loss. In other words, the plaintiff had to show that due to the consumer fraud of the defendant, the plaintiff suffered direct monetary damages. However, a recent New Jersey case, Perez v. Professionally Green, LLC, suggests that a plaintiff who proves a per se CFA violation may collect its reasonable attorneys’ fees as damages even without proving an ascertainable loss, so long as the underlying consumer fraud is proven.
On October 21, 2011, the Appellate Division issued a ruling that limits the application of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, to complicated commercial transactions.
Unlike the vast majority of states, New Jersey does not currently have a Trade Secrets Act on the books. As a result, all trade secrets litigation under New Jersey law is governed by the common law. That may be about to change under legislation which is making its way through the New Jersey Legislature and may be close to passage.
